(Being an Appeal against the Judgment by Hon. Edward Oboge (RM) in Nakuru SCCC No. E323 of 2023, Delivered on 12th October 2023).
1. The jurisdiction of the appellate court is to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence, should stand. However, this jurisdiction has to be exercised with caution. If the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a trial magistrate who saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial magistrate as to where credibility lies, is entitled to great weight. This is not to say that the trial magistrate can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. He may go wrong on a question of fact, but it is a cogent circumstance that a trial magistrate, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. This, should always be kept in mind by an appellate court in re-evaluating the evidence as a whole.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.
3. In the primary suit, Patricia Njeru Mweru (CW1) adopted her statement dated 23rd June, 2023 as her evidence in chief and her documents in evidence save 3, 4 and 5. It was in evidence that the suit motor vehicle was over speeding when the accident occurred. Under cross examination, the witness said at the time of the accident, the motor vehicle belonged to James Karoki. At the time of the accident, Geoffrey Mwangi Gachoya was the driver of the accident motor vehicle.
4. Gemega Peter (CW2) told court that she treated the claimant for the injuries sustained a road accident and he produced treatment notes as Exhibits and he was paid Kshs50,000/ to attend and testify in court. The witness said that he attended the claimant on 20th August, 2021 after being involved in a road traffic accident.
5. PC Paul (CW3) produced a Police Abstract in evidence in respect to Motor Vehicles KAM 817U and KCC 567S. Motor Vehicle KCC 567S rammed into KAM 817U. Under cross examination, the witness said that the driver of the accident Motor vehicle was James Karoki Njoroge.
6. Geoffrey Mwangi Gachoya (RW1) adopted his witness statement and documents. He had sold the accident Motor vehicle to Bernard at the time of the accident. The accident Motor vehicle had a loan with Family Bank. Under cross examination, the witness said that he did not witness the accident.
7. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact by weighing the Respondent’s case in isolation of the Appellants’ case, precluded himself from assessing the magnitude of the damages impartially.
b. That the Learned Trial Magistrate misdirected himself by treating evidence and submissions before him oN liability and quantum superficially and consequently arrived at a wrong decision without any basis in law or fact.
c. That the Learned Trial Magistrate erred in law and fact by awarding the 1st Respondent an excessive and unjustified amount on quantum for general damages of Kshs850,000/ for degloving injury and minor soft tissue injuries.
d. That the Learned Trial Magistrate erred in law and fact by failing to consider the Appellant’s evidence and submissions on points of law and facts by finding that the 1st Respondent was entitled to special damages of Kshs11220 which was not specifically proved.
e. That the Learned Trial Magistrate erred in law and fact by misdirecting himself to the exact nature of the 1st Respondent’s injuries therefore erred in law in hi assessment of damages which had not been proved.
f. That the Learned Trial Magistrate erred in law and fact by disregarding the appellant’s submissions in totality thus precluding himself from the assessing the magnitude of damages impartially.
g. That the Learned Trial Magistrate erred in law and fact by relying on erroneous principles of law in arriving at an excessive award on quantum.
h. That the Learned Trial Magistrate erred in law and fact by failing to accord the appellant’s submissions due consideration.
i. That the Learned Trial Magistrate’s finding on quantum and of damages are not supported by facts or law hence irregular.
8. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal. I have in this judgement, considered the submissions, in context.
Analysis and Determination:
9. I have with singleness of my mind collapsed the grounds and settled on two issues for determination on whether or not the appellant proved his case on a balance of probability and whether or not quantum can be disturbed. The Evidence Act is clear enough upon whom the burden of proof lies. Section 107 provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities.
10. Cursory perusal of the witness statement of the Respondent, it is recorded, “However, when we reached at National Petrol Station along Nakuru-Gilgil Highway Stage at about 13:30 hours, the driver of the said Motor Vehicle Registration Number KCC 567S without due regard to other road users negligently, carelessly and or recklessly drove, managed and or controlled the same and permitted it to ram onto Motor Vehicle Registration Number KAM 827V from behind thus causing an accident”
11. It is not difficult to conclude, that the accident Motor Vehicle Registration Number KCC 567S was the author of the accident. Therefore, I must borrow the dictum from Abdul Halim T/A Tawfique Bus Services Vs Justus Thuranira (suing as legal representative of the estate of Kithinji M’Irura (deceased) Civil appeal Case No. 305 of 2005 (Nyeri), where the Court of Appeal quoting from Kenya bus Services Ltd Vs Kawira [2003] 2 EA 519, authoritatively stated that buses, when properly maintained, properly serviced and properly driven, do not just run over bridges and plunge into rivers without any explanation. Equally in our scenario, when properly maintained, properly serviced and properly driven, matatus, do not just ram into other matatus from the rear without any explanation. It was incumbent upon the driver of the accident Motor Vehicle, KCC 567S to give a satisfactory explanation why it rammed into Motor Vehicle KAM 817U. However, upon perusal of the lower court proceedings, I see no any explanation. I therefore hold the Appellant 100% liable for the accident.
12. On assessment of quantum, many are the decisions which speak and sets the law in personal injury claims and whereas I may not set them here, I shall for purposes of having handle of the matter, sample a few. In Lord Morris’ speech in H West & Son Vs Shephard, [1964] AC 326, said that the difficult task of awarding money compensation is a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. It is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere, there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.
13. Lord Morris said in Jag Singh Vs Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382 , that, it need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.
14. I must therefore register my deep respect to the jurists, who have in endless ages set the law, as it ought to be. I will forever be grateful. What is more. These decisions can be heard in the corridors of our courts, in every season of the year. It sets continuity of the law. Departing from it, I, in without a doubt becomes, a prodigal son. It is no doubt, that economics has been challenging in every single day. Consequently, Learned Magistrates must keep very close to their hearts, that inflation, keeps rising and whatever consideration that may be, prices of fuel must be the center-piece for quantification of damages in every personal injury claim. I note from the catalogue of injuries suffered by the Appellant, the case laws, comparable awards and the proposal on quantum, demonstrate the true method of approach of the injuries sustained by the Appellant. In view therefore, I find no reason to upset the Magistrates finding on Quantum.
15. Putting all these together, I make the following orders;
a. On liability, I hold the Appellant 100% liable for the accident.
b. On quantum, I uphold the Award by Trial Magistrate.
c. Costs of this appeal to the Respondent..
Delivered virtually this 9th September, 2026 in the presence of the Mr Karanja for the Respondent and Sagasi- Court Assistant.
1. The jurisdiction of the appellate court is to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence, should stand. However, this jurisdiction has to be exercised with caution. If the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a trial magistrate who saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial magistrate as to where credibility lies, is entitled to great weight. This is not to say that the trial magistrate can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. He may go wrong on a question of fact, but it is a cogent circumstance that a trial magistrate, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. This, should always be kept in mind by an appellate court in re-evaluating the evidence as a whole.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.
3. In the primary suit, Patricia Njeru Mweru (CW1) adopted her statement dated 23rd June, 2023 as her evidence in chief and her documents in evidence save 3, 4 and 5. It was in evidence that the suit motor vehicle was over speeding when the accident occurred. Under cross examination, the witness said at the time of the accident, the motor vehicle belonged to James Karoki. At the time of the accident, Geoffrey Mwangi Gachoya was the driver of the accident motor vehicle.
4. Gemega Peter (CW2) told court that she treated the claimant for the injuries sustained a road accident and he produced treatment notes as Exhibits and he was paid Kshs50,000/ to attend and testify in court. The witness said that he attended the claimant on 20th August, 2021 after being involved in a road traffic accident.
5. PC Paul (CW3) produced a Police Abstract in evidence in respect to Motor Vehicles KAM 817U and KCC 567S. Motor Vehicle KCC 567S rammed into KAM 817U. Under cross examination, the witness said that the driver of the accident Motor vehicle was James Karoki Njoroge.
6. Geoffrey Mwangi Gachoya (RW1) adopted his witness statement and documents. He had sold the accident Motor vehicle to Bernard at the time of the accident. The accident Motor vehicle had a loan with Family Bank. Under cross examination, the witness said that he did not witness the accident.
7. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the Learned Trial Magistrate erred in law and fact by weighing the Respondent’s case in isolation of the Appellants’ case, precluded himself from assessing the magnitude of the damages impartially.
b. That the Learned Trial Magistrate misdirected himself by treating evidence and submissions before him oN liability and quantum superficially and consequently arrived at a wrong decision without any basis in law or fact.
c. That the Learned Trial Magistrate erred in law and fact by awarding the 1st Respondent an excessive and unjustified amount on quantum for general damages of Kshs850,000/ for degloving injury and minor soft tissue injuries.
d. That the Learned Trial Magistrate erred in law and fact by failing to consider the Appellant’s evidence and submissions on points of law and facts by finding that the 1st Respondent was entitled to special damages of Kshs11220 which was not specifically proved.
e. That the Learned Trial Magistrate erred in law and fact by misdirecting himself to the exact nature of the 1st Respondent’s injuries therefore erred in law in hi assessment of damages which had not been proved.
f. That the Learned Trial Magistrate erred in law and fact by disregarding the appellant’s submissions in totality thus precluding himself from the assessing the magnitude of damages impartially.
g. That the Learned Trial Magistrate erred in law and fact by relying on erroneous principles of law in arriving at an excessive award on quantum.
h. That the Learned Trial Magistrate erred in law and fact by failing to accord the appellant’s submissions due consideration.
i. That the Learned Trial Magistrate’s finding on quantum and of damages are not supported by facts or law hence irregular.
8. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal. I have in this judgement, considered the submissions, in context.
Analysis and Determination:
9. I have with singleness of my mind collapsed the grounds and settled on two issues for determination on whether or not the appellant proved his case on a balance of probability and whether or not quantum can be disturbed. The Evidence Act is clear enough upon whom the burden of proof lies. Section 107 provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities.
10. Cursory perusal of the witness statement of the Respondent, it is recorded, “However, when we reached at National Petrol Station along Nakuru-Gilgil Highway Stage at about 13:30 hours, the driver of the said Motor Vehicle Registration Number KCC 567S without due regard to other road users negligently, carelessly and or recklessly drove, managed and or controlled the same and permitted it to ram onto Motor Vehicle Registration Number KAM 827V from behind thus causing an accident”
11. It is not difficult to conclude, that the accident Motor Vehicle Registration Number KCC 567S was the author of the accident. Therefore, I must borrow the dictum from Abdul Halim T/A Tawfique Bus Services Vs Justus Thuranira (suing as legal representative of the estate of Kithinji M’Irura (deceased) Civil appeal Case No. 305 of 2005 (Nyeri), where the Court of Appeal quoting from Kenya bus Services Ltd Vs Kawira [2003] 2 EA 519, authoritatively stated that buses, when properly maintained, properly serviced and properly driven, do not just run over bridges and plunge into rivers without any explanation. Equally in our scenario, when properly maintained, properly serviced and properly driven, matatus, do not just ram into other matatus from the rear without any explanation. It was incumbent upon the driver of the accident Motor Vehicle, KCC 567S to give a satisfactory explanation why it rammed into Motor Vehicle KAM 817U. However, upon perusal of the lower court proceedings, I see no any explanation. I therefore hold the Appellant 100% liable for the accident.
12. On assessment of quantum, many are the decisions which speak and sets the law in personal injury claims and whereas I may not set them here, I shall for purposes of having handle of the matter, sample a few. In Lord Morris’ speech in H West & Son Vs Shephard, [1964] AC 326, said that the difficult task of awarding money compensation is a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. It is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere, there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.
13. Lord Morris said in Jag Singh Vs Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382 , that, it need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.
14. I must therefore register my deep respect to the jurists, who have in endless ages set the law, as it ought to be. I will forever be grateful. What is more. These decisions can be heard in the corridors of our courts, in every season of the year. It sets continuity of the law. Departing from it, I, in without a doubt becomes, a prodigal son. It is no doubt, that economics has been challenging in every single day. Consequently, Learned Magistrates must keep very close to their hearts, that inflation, keeps rising and whatever consideration that may be, prices of fuel must be the center-piece for quantification of damages in every personal injury claim. I note from the catalogue of injuries suffered by the Appellant, the case laws, comparable awards and the proposal on quantum, demonstrate the true method of approach of the injuries sustained by the Appellant. In view therefore, I find no reason to upset the Magistrates finding on Quantum.
15. Putting all these together, I make the following orders;
a. On liability, I hold the Appellant 100% liable for the accident.
b. On quantum, I uphold the Award by Trial Magistrate.
c. Costs of this appeal to the Respondent..
Delivered virtually this 9th September, 2026 in the presence of the Mr Karanja for the Respondent and Sagasi- Court Assistant.